Court: sentence too lenient for rancher and son

PORTLAND) — Two members of an eastern Oregon ranching family received too lenient a punishment for setting fires to public land, and they should be re-sentenced, a federal appeals court has ruled.

A three-judge panel of the 9th U.S. Circuit Court of Appeals said U.S. District Judge Michael Hogan illegally sentenced the Harney County pair to terms below the five-year minimum established by Congress, The Oregonian newspaper reported.

“A minimum sentence mandated by statute is not a suggestion that courts have discretion to disregard,” Judge Stephen J. Murphy III wrote in Friday's opinion.

Dwight Hammond Jr., 72, and his son, Steven D. Hammond, 44, were found guilty in 2012 of intentionally and maliciously setting fires in September 2001 near Steens Mountain, where they leased public land for livestock grazing. The fire consumed 139 acres of public land, taking it out of production for two growing seasons.

Steven Hammond was also found guilty of setting fires in August 2006 on the boundary of the Hammonds’ land. Despite a burn ban, the court noted, he said he set them to counteract fires sparked by lightning nearby. The fire consumed one acre of public land, according to the decision.

Hogan sentenced the father to three months in prison and the son to one year and a day.

The sentencings in October 2012 were Hogan's last before his retirement the following day after nearly 40 years as a federal judge. According to a transcript from the hearing, Hogan said he didn't believe Congress intended for the five-year minimum to apply to fires set in the wilderness.

“I will impose a sentence that I believe is defensible under the law, but also one that is defensible to my conscience,” he said.

A lawyer for the Hammonds, Larry Matasar, said he's disappointed by the opinion and believes the Hammonds will ask the full 9th Circuit bench to reconsider the panel's decision.

Meanwhile, the opinion pleased Kelly Zusman, the appellate chief for the U.S. Attorney's Office.

“It's important that the public know that setting fires to public lands — regardless of whether it's a building in a city or sagebrush in eastern Oregon — will result in federal jail time.”